Let the good times roll.
That's the counterintuitive conclusion we draw from our research for The National Law Journal's annual Pro Bono Awards.
The towers of finance and industry are toppling, knocking over law firms on their way down. Yet the firms left standing still recognize that their futures depend in large measure on keeping young associates productive, happy and committed, and that pro bono might be a way to do that.
Managers with memories have learned the lessons of the dot-com crash, when firms jettisoned associates and made first-year and summer associates delay their starting dates. Firms cut back on pro bono credit, sometimes entirely. The clear message was that associates overly focused on pro bono had too little real work to do, said Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center.
"That caused associate grumbling and morale issues, and made people feel even shakier about what the future was at the firm. People lost associates who were feeling at loose ends and invisible," Lardent said in an interview.
"I think most of the firms have learned their lesson," she continued. "What they now understand is that in tough times -- when the issue is permanence and commitment to the firm and thinking long term -- that pro bono is a very important indicator that the firm is on solid ground, that the firm cares for and respects individual lawyers, is about more than just short-term thinking."
Keith C. Wetmore, chairman of Morrison & Foerster, confirmed Lardent's analysis. Even in this economic climate, "I think you'll see stepped-up pro bono," he said. "When you have pockets of slowness" in a law firm, "you want to encourage lawyers to use their time productively, and pro bono is a good place to do that."
Wetmore expects Morrison to perform "significantly higher pro bono hours this year than last."
HOURS UP SIGNIFICANTLY
Fresh surveys of pro bono trends won't be available until later in the year, but data from 2007 confirm the anecdotal evidence. The Pro Bono Institute reported that 135 of the country's largest firms provided nearly 4.3 million hours to pro bono projects in 2007, representing a 170 percent increase since 1995.
In a separate survey, The American Lawyer magazine, an affiliate of the NLJ, reported in July that the pro bono commitment among its list of the 200 highest-grossing U.S. firms exceeded 4.8 million hours in 2007, an increase of 590,000 hours from 2006. Per capita hours were up to 53.6, an annual increase of nearly 8 percent. The firms surveyed reported that 42.3 percent of their lawyers performed at least 20 hours of pro bono work, a 12 percent increase and a record for the survey.
Applying a blended rate of $300 per hour, the big firms on the magazine's list contributed approximately $1.45 billion in billable hours.
The argument about whether pro bono makes business sense for large firms is over, said Robert Dicks, a senior manager at Deloitte Consulting LLP in New York. With large firms at rough parity in terms of compensation, firms understand that an effective pro bono program can cement their reputation as a good place to launch a legal career.
In a report published in November 2008 -- and that will be posted to the deloitte.com Web site this week -- Deloitte cites the National Association for Law Placement's "conservative" estimate that the cost of replacing a defecting associate can exceed a "staggering" $100,000. At the same time, "two of the top three reasons for associate attrition related to the ability of law firms to connect lawyers to matters and partners focused on their development," Deloitte said, again citing NALP figures.
Against this background, managers at large firms clearly see pro bono not as a cost, but as an investment. Dicks noted that during a recent professional development conference, he addressed a room packed with law firm staff whose sole duty was to manage pro bono programs.
"Firms are starting to do this well -- it's a managed part of their business," he said. "The return comes from doing pro bono efficiently and thoughtfully -- putting the right associates on the right matters to give them the development opportunity they need in their careers."
About the NLJ survey: We asked our readers to nominate attorneys and law firms that did the most to uphold the principle that justice shouldn't be contingent on the client's ability to pay.
We looked for firms that had devoted substantial time and money to the cause, and gave bonus points if the nominee risked particular opprobrium by standing up for the despised and rejected.
It was a completely subjective process, and unfortunately we lack the space to recognize all of the firms we admire -- or every firm that participated in a successful collaboration. Morrison, for example, has donated 24,000 pro bono hours seeking government recognition of veterans' post-traumatic stress disorder injuries. (The case is before the 9th U.S. Circuit Court of Appeals.) Meanwhile, Wilmer Cutler Pickering Hale and Dorr argued the habeas corpus rights of "war on terror" detainees all the way to the U.S. Supreme Court; in November, a federal judge ordered five WilmerHale clients released "forthwith."
We settled on firms engaged in struggles that took on particular resonance in 2008: voting rights, same-sex marriage, refuge for Iraqis who endangered their lives by working with U.S. forces, and reparations for the remaining victims of the Nazis' "ghetto work" program. That last project required creation of a national, even international, network to organize and train volunteers in assisting reparations seekers.
"If that works for Holocaust survivors, why couldn't it work for homeless men?" Lardent noted. "You see this thinking bigger, and thinking strategically."
Lardent gives some credit for this turn to corporate law departments; as they have assumed more pro bono responsibilities, they've brought a business mindset to the game. Law firms used to differentiate between service to individual clients and impact litigation, but "that's old thinking," Lardent said. "You need to provide representation to individuals but you want to do it in a way that lowers the transactional costs of how you do it, and you serve more people."
Following Hurricane Katrina, individual attorneys hightailed it down to the Gulf Coast to help storm victims only to find that they were constantly reinventing the wheel. "What they realized was that their best role was to provide training and materials and contacts into the survivor community," Lardent said.
The future is in pro bono "that focuses on what outcome is there going to be -- pro bono that looks at the obstacles and that tries to solve systemic problems and that is strategic rather than simply tactical," she said. "To help people, but to look at the underlying problem."
For more information on the winning firms, see the following stories on The National Law Journal site:
THE WINNING FIRMS
Each year, The National Law Journal recognizes the firms that have done the most to uphold the legal profession's responsibility to ensure that people's legal rights aren't contingent on their ability to pay. It is a subjective process, and we unfortunately lack the space to recognize all of the firms we admire. This year, we honor firms engaged in struggles that took on particular resonance in 2008: voting rights, same-sex marriage, refuge for Iraqis who endangered their lives by working with U.S. forces, and reparations for the remaining victims of the Nazis' "ghetto work" program.
HOLLAND & KNIGHT, MAYER BROWN, PROSKAUER ROSE
Pending peace, refuge for Iraqis
Eric Blinderman, international legal counsel to Proskauer Rose, had gone to Iraq in March 2004 as an associate general counsel for the Coalition Provisional Authority. Later, he served as chief legal counsel and associate deputy to the Regime Crimes Liaison. In 2007, Blinderman's firm officially became a part of The List: Project to Resettle Iraqi Refugees, a nonprofit organization founded that year to help resettle Iraqis in danger because of their affiliation with the United States. Holland & Knight had already been collaborating with the project, and Mayer Brown signed on this year.
Old crime, new model of activist pro bono
When lawyers volunteered at a Los Angeles legal services agency to help Holocaust survivors complete applications for a German reparations fund, it was a good deed. But then the lawyers and the legal aid attorneys did something different. They created a national legal-assistance network that trained hundreds of volunteer attorneys to assist thousands of Holocaust survivors in 32 U.S. cities. Establishing the Holocaust Survivors Justice Network was not merely another good thing: It rewrote the pro bono playbook.
Full-court press for access to the ballot
Firms nationwide were inspired by the historic 2008 presidential election to devote pro bono time to protecting access to the voting booth. Lawyers went to court in several states on voter access issues, most frequently to prevent a voting reform law, the Help America Vote Act, from becoming a barrier to the ballot. The law required states to match voter rolls with another database, usually the registry of driver licenses, to create a more accurate list of voters
HOWARD RICE NEMEROVSKI
If at first you don't succeed, keep going
Proposition 8 proponents are going to court to invalidate more than 18,000 marriages performed during the 4 1/2 months that same-sex marriage was legal in California. It's another stage of a hard, long slog for Bobbie J. Wilson, one of the Howard Rice Nemerovski Canady Falk & Rabkin attorneys who have been working on the issue ever since Valentine's Day 2004, when San Francisco Mayor Gavin Newsom declared that the state's existing ban on same-sex marriage was unconstitutional, and gay and lesbian couples flocked to the city to get hitched.